PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE
THE TURKISH CONSTITUTION
Article 22 of the Turkish Constitution states that interception of communication shall be granted if “there is a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, protection of the rights and freedoms of others; or in non-delayable cases if there exists a written order of an agency authorised by law, again on the above mentioned grounds.”
“Agencies authorised by law” means any governmental body that is established pursuant to their establishment rules. Examples of agencies authorised by law or intelligence bodies are: the director general of public security, commander of the Turkish gendarmerie forces (at their duty stations) or the director of intelligence agency.
The “law” here can either be a Law, a Decree-Law or a Regulation which is actually below the former within the hierarchy of laws, as per the Turkish legal system. The agency authorised by law includes Information and Communication Technologies Authority (“BTK”), establishment of which is required by the Law of Electronic Communications No. 5809 (“5809 sayılı Elektronik Haberleşme Kanunu”). Unfortunately, the term “non-delayable” cases is not a defined term within the Constitution, so it remains open to potentially wide interpretation.
REGULATION ON AUTHORISATION WITHIN THE ELECTRONIC COMMUNICATION SECTOR, PUBLISHED IN THE OFFICIAL GAZETTE NO. 27241, ENTERED INTO FORCE ON 27.5.2009 (“ELEKTRONIK HABERLEŞME SEKTÖRÜNE İLIŞKIN YETKILENDIRME YÖNETMELIĞI”) ( THE “REGULATION”)
Article 21 of the Regulation empowers the BTK to intercept a communication or suspend, interrupt or stop electronic communication operators from providing a communication service (entirely or partially), if the legal conditions of “protecting the public safety, public health, public morals and other public interests as such”, are met. If these conditions are met, BTK shall obtain the opinion of the Transportation and Communication Ministry in order to decide on interception of communications provided by the relevant operator(s).
For the purposes of the Regulation, the word “interception” may also mean suspension, interruption, stopping and/or blocking.
According to the hierarchy of the governmental bodies, BTK is bound to the Ministry of Transportation and Communication; hence the Ministry’s opinion shall be taken into account where necessary. ‘Where necessary’ is an ambiguous expression because there is no absolute ground or application of the occasions that are objectively necessary for the Ministry’s opinion.
REGULATION ON THE PROCEDURES ORGANISING THE PUBLICATIONS ON THE INTERNET, PUBLISHED IN THE OFFICIAL GAZETTE NO. 26716 AND ENTERED INTO FORCE ON 30.11.2007 (“INTERNET ORTAMINDA YAPILAN YAYINLARIN DÜZENLENMESINE DAIR USUL VE ESASLAR HAKKINDA YÖNETMELIK”) (THE “INTERNET REGULATION”)
As for communications made via the Internet, Article 12 of the Internet Regulation states that the Presidency of Telecom Communications (“TIB”) may decide to intercept or block access to the relevant content on the following grounds: “promoting suicide”, “sexual harassment of children”, “expediting usage of drugs”, “providing material harmful for health”, “obscenity”, “prostitution”, “providing venues and opportunities for gambling”, and crimes against Ataturk (the founder and the first president of the Republic of Turkey). The orders of TIB are directly sent to the internet access providers, which includes the operators who provide access to the Internet.
TIB is directly bound to the president of the BTK and serves within the BTK, as per Article 16 of the Regulation for Detecting, Recording and Wire-tapping the Communications, Evaluating the Signal Data, published in the Official Gazette no. 25989 on 10.11.2005 (“Telekomünikasyon Yoluyla Yapılan İletişimin Tespiti, Dinlenmesi, Sinyal Bilgilerinin Değerlendirilmesi Ve Kayda Alınmasına Dair Usul Ve Esaslar İle Telekomünikasyon İletişim Başkanlığının Kuruluş, Görev Ve Yetkileri Hakkinda Yönetmelik”).
As per Article 16 of the Internet Regulation, the order of TIB is sent to the internet access providers, including operators, via electronic means and shall be applied by the access providers within twenty-four hours following the delivery of the order. However; this order shall be subject to legal examination.
THE REGULATION FOR THE ORGANISATION OF BTK, PUBLISHED UPON A DECREE OF COUNCIL OF MINISTERS NUMBERED 2011/1688 AND DATED 4.4.2011, PUBLISHED IN THE OFFICIAL GAZETTE NO. 27958 AND WHICH CAME INTO FORCE ON 8.11.2011 (“BILGI TEKNOLOJILERI VE İLETIŞIM KURUMU TEŞKILAT YÖNETMELIĞI” (THE “ORGANISATION REGULATION”)
Article 5/(u) of the Organisation Regulation provides that any and all types of information can be obtained by the BTK from operator enterprises, state institutions, real persons and legal entities, if requested by the Ministry. Therefore operators are obliged to provide the necessary information upon the BTK’s request. In Article 5/(ü) of the Organisation Regulation BTK is entitled to take all precautionary actions stated by laws such that activities within the sector are carried out pursuant to the requirements of national security, public order or public services. Here “any and all types of information” is a rather broad term and may include the documents and/or information relating to technical requirements for interception.
Further to this, Article 5/1 of The Regulation on Authorisation within the Electronic Communication Sector published in the Official Gazette no. 27241 and entered into force on 27.5.2009 (“Elektronik Haberleşme Sektörüne İlişkin Yetkilendirme Yönetmeliği”) states that the Transportation Ministry’s strategy and policies shall be taken into account while the operators establish the technical infrastructure upon the authorisation given by the BTK. ‘Strategy and policies of the Ministry’ is another broad term which may conceivably be used by the Ministry to give flexibility to its actions within the communication sector.
Regulation for Detecting, Recording and Wiretapping the Communications, Evaluating the Signal Data, published in the Official Gazette no. 25989 on 10.11.2005 (“Telekomünikasyon Yoluyla Yapilan İletişimin Tespiti, Dinlenmesi, Sinyal Bilgilerinin Değerlendirilmesi Ve Kayda Alinmasina Dair Usul Ve Esaslar İle Telekomünikasyon İletişim Başkanliğinin Kuruluş, Görev Ve Yetkileri Hakkinda Yönetmelik”) (the “Wire-tapping Regulation”)
The Wire-Tapping Regulation is important because activities such as “wire-tapping” mean accessing the content of telecommunications and require a higher threshold. The Wire-tapping Regulation gives wiretapping powers to the intelligence bodies, such as the Security General Directorate or Intelligence Head, Gendarmerie General Command etc., by delivering their written order to the relevant offices for appropriate execution. These orders can be given in urgent cases for prosecution of specific sorts of crimes such as organised drug trafficking, organised economic crimes, sedition, crimes against the constitutional unity, national security, and governmental confidentiality and spying.
In case there is “serious danger” against the essential interests of the Country and the democratic constitutional state, and if the case is deemed to be “urgent”, written orders may be given for granting security of the government, revealing espionage (spy activities), ascertaining disclosure of state secrets and preventing terrorist activities by the Secretary or/and Deputy Secretary of the National Intelligence Organisation and delivered to the relevant offices for appropriate execution. (Art. 7).
The “relevant offices” mentioned above, where the written orders shall be sent to, appears to be those of TIB. According to Article 10 of the Wire-Tapping Regulation, written orders and decisions shall be sent to TIB via the electronic means determined by TIB. The orders and decisions are then applied under TIB’s supervision.
DISCLOSURE OF COMMUNICATIONS DATA
REGULATION ON PROTECTING THE PRIVACY OF PERSONAL DATA WITHIN ELECTRONIC COMMUNICATION SECTOR ENACTED AS REQUIRED BY THE LAW NO. 5809 OF ELECTRONIC COMMUNICATIONS, PUBLISHED IN THE OFFICIAL GAZETTE NO. 28363
Article 5/(5) of the Regulation on Protecting the Privacy of Personal Data within Electronic Communication Sector, enacted as required by the Law no. 5809 of Electronic Communications, published in the Official Gazette no. 28363 which came into force on 1.1.2014 (“Elektronik Haberleşme Sektöründe Kişisel Verilerin İşlenmesi Ve Gizliliğinin Korunmasi Hakkinda Yönetmelik”) (the “Privacy Regulation”), provides BTK with the power to access the systems where customer data is collected and stored, if deemed necessary. Because the Privacy Regulation came into force just recently it is not yet clear which occasions are to be treated as “necessary”. However, considering this article is located under the subheading of “Security”, it is assumed this power may be used for security reasons, which may cover public security, preventing crime, prosecuting an alleged crime etc. However BTK is not entitled to access the content of the telecommunication, e.g. listen to the voice content of a telephone call, or read the content of a text message.
The BTK also has power to request all information and documents concerning the security measures taken by operators. It may also request amendments to the security measures taken by the operators if such interference is deemed necessary.
LAW NO. 5651 ON THE REGULATION OF INTERNET PUBLICATIONS AND PREVENTION OF CRIME
Under Article 3 (as amended on February 6, 2014) of the Law no. 5651 on the Regulation of Internet Publications and Prevention of Crime, internet access providers must provide communications data requested by the TIB, including a subscriber’s name, identity information, address, phone number, date and time of logging into a system, date and time of logging off a system, the IP address given for the relevant access and access points, and/or resource IP address and port number, targeted IP address and port number, protocol type, URL address, date and time of connection and date and time of ending of the connection. These data can only be obtained by TIB where a court order is given in relation to the prosecution of a crime.
The TIB’s and the BTK’s actions may be brought before the administrative courts for cancellation.
The content of communications cannot be accessed by the BTK or the TIB as per the Electronic Communication Sector legislation. However, if in a particular case pending before the prosecutor, the prosecution or the criminal procedure requires it, then the content may be disclosed.
NATIONAL SECURITY AND EMERGENCY POWERS
THE TURKISH CONSTITUTION
Intelligence authorities and agencies authorised by law (including the BTK) have the power to intercept communication for national security, public order, prevention of crime, protection of public health and public morals and protection of the rights and freedoms of others. Therefore they are entitled to take all necessary actions relating to these grounds, as per Article 22 of Turkish Constitution.
According to Turkish Constitution Article 15 and the Law no. 2935 enacted on 25.10.1983 on State of Emergency, communications may be intercepted permanently, or the tools to provide communications to customers may temporarily be seized by reason of public emergency, national security, mobilisation or war.
In case of application of Law no. 2935 enacted on 25.10.1983 on State of Emergency, a declaration of extraordinary administration procedures may derive from a natural disaster or a serious economic crisis, widespread acts of violence and serious deterioration of the public order. The right to communication and the privacy of communication and personal life may be restricted entirely or partially which could hand the control of all authorisations mentioned above to the entities indicated in the decree laws.
Also, in the event of widespread acts of violence which are aimed at the destruction of the free democratic order or the fundamental rights and freedoms embodied in the Constitution and more dangerous than the cases requiring a state of emergency; or in the event of war, the emergence of a situation requiring war, an uprising, or the spread of violent and strong rebellious actions against the motherland and the Republic, or widespread acts of violence of internal or external origin threatening the indivisibility of the country and the nation, the Council of Ministers, under the chairpersonship of the President of the Republic, after consultation with the National Security Council, may declare martial law in one or 60 more regions throughout the country for a period not exceeding six months.
OVERSIGHT OF THE USE OF THESE POWERS
Under Article. 22 of the Turkish Constitution, an authorised agency’s order (apart from that of BTK) shall be submitted for a judge’s approval in twenty-four hours. The judge’s decision shall be declared within forty-eight hours following the submission; otherwise the said order of authorised agency is abolished per se.
The Turkish legal system is based on the continental European legal system. In this respect, the actions/orders/decisions of a governmental body can be subject to cancellation or nullity claims before the Administrative Courts and not the Civil Courts.
Administrative courts cannot act on behalf of the administrative bodies, but merely take precautionary suspension of administrative actions and then decide on either the cancellation or nullity, or approval of such actions. In that sense, BTK’s decision and/or Transportation and Communication Ministry’s opinion are not subject to judicial oversight, unless they are brought before administrative courts for cancellation.
Although other authorised agencies’ orders e.g. a Prosecutor’s order in an urgent case must be approved by a judge, it appears BTK’s actions of interception are not subject to a judge’s prior approval. However they can still be subject to litigation before administrative courts for their validity and enforceability.
As per Article 17 of the Internet Regulation, if the Prosecutor decides there is no adequate evidence to create suspicion (an ‘adequate suspicion’ threshold) then the order shall be abolished per se. In urgent cases during the prosecution process, however, the Prosecutors themselves may decide on intercepting/ blocking of the content. This decision must be brought before the judge in twenty-four hours and the judge shall decide on the matter within twenty-four hours. Unfortunately, what amounts to an urgent case is not defined within the Internet Regulation, so it remains quite open to interpretation.
Article 8 of the Wire-tapping Regulation states that an authorised agency’s order, such as order of the Security General Directorate or Intelligence head, Gendarmerie General Command, Secretary of the National Intelligence Organisation, shall be submitted to a judge’s approval within twenty-four hours. The judge’s decision shall be declared within forty-eight hours following the submission; otherwise the order of the authorised agency is abolished per se.
The decision for conducting the wire-tapping etc. can be given for a period of 3 months at most. This period can be prolonged three times at most for a period not longer than 3 months (i.e. 3×3=9 months).
Intelligence bodies (Security General Directorate, Gendarmerie General Command or National Security Organization) or Prosecutor’s decision must be approved by the judge within twenty-four hours following their submission, or the order shall be abolished.
CENSORSHIP RELATED POWERS
SHUT-DOWN OF NETWORK AND SERVICES
A network operator, such as Vodafone, must obtain authorisation of the Communication Technologies Authority (“BTK”) to legally operate its network.
REGULATION ON INFORMATION AND COMMUNICATION TECHNOLOGIES AUTHORITY ADMINISTRATIVE PENALTIES
In cases of war, mobilisation and/or public emergency the BTK may order the shut-down of all or some of a network operator’s (such as Vodafone) services for a limited or indefinite period of time if requested to do so by government agencies responsible for public security and national defence. This is pursuant to Article 34 of the Regulation on Information and Communication Technologies Authority Administrative Penalties. Given the broad nature of such powers it is feasible that they might extend to ordering the shutdown of Vodafone’s entire network. If a network operator did not comply with such an order such non-compliance would constitute gross negligence and its authorisation to provide network services would be terminated.
BTK can also terminate authorisation entirely where a network operator (such as Vodafone) breaches national security or public order rules under Articles 31 and 32 of the Regulation on Information and Communication Technologies Authority Administrative Penalties.
ELECTRONIC COMMUNICATIONS LAW
Network operators must comply with the procedures and proceedings in the Electronic Communications Law; this includes obtaining the BTK’s authorisation in order to legally operate as a network operator. The procedure for obtaining authorisation is set out in detail in Article 9. The BTK has the power to suspend or revoke authorisation to operate a network if the operator in question contravenes its obligations under the Electronic Communications Law or if BTK considers the operator to have been grossly negligent in operating its network or services.
BLOCKING OF URLS & IP ADDRESSES
LAW NO.5651 ON REGULATION OF PUBLICATIONS ON THE INTERNET AND SUPPRESSION OF CRIMES COMMITTED BY MEANS OF SUCH PUBLICATIONS
Article 9 of Law No.5651 obliges access providers (such as Vodafone) to prevent access to IP addresses or URLs which are marked as providing access to illegal content by a court decision or by the Presidency of Telecom Communications Head Office (“TIB”). The Union of Access Providers (established on 19 May 2014) is responsible for notifying operators of a court or TIB decision; network operators (access providers) are then obliged to carry out the necessary blocking within 4 hours of receiving such notice. Article 8/16 of Law No 5651 (as subsequently amended by Article 127 of Code No 6552 (known as the Omnibus Law)) provided the Chairman of TIB with the power to request the blocking of websites and content in order to protect national security and public order, as well as to prevent crime. Upon receiving such request the service provider was required to shut down the website or remove the content specified within 4 hours. On the 2nd October 2014 the Constitutional Court ruled that Article 8/16 (as amended by Article 127 of Code No 6552) was unconstitutional and annulled it.
POWER TO TAKE CONTROL OF VODAFONE’S NETWORK
REGULATION ON INFORMATION AND COMMUNICATION TECHNOLOGIES AUTHORITY ADMINISTRATIVE PENALTIES
Please see ‘Shut-down of network and services’ above. In cases of war, mobilisation and/or public emergency BTK may take control of Vodafone’s network pursuant to Article 34 of the Regulation on Information and Communication Technologies Authority Administrative Penalties. BTK must have a written order from the government agencies responsible for public security and national defence to do so.
OVERSIGHT OF THE USE OF POWERS
BTK’s decisions are administrative acts and subject to legal procedures. Therefore a relevant party (for example, in the circumstances described above, a network operator such as Vodafone) could commence a lawsuit for cancellation of a decision taken by BTK before the relevant legal authorities.
Where the Chairman of TIB requests the blocking of a website or removal of certain content, that request is submitted to the Criminal Court of Peace for approval by a judge within 24 hours. The judge must then decide whether to approve the request within 48 hours.